Companies learn social media mores

Over the last several years, the National Labor Relations Board has significantly extended its reach into nonunionized workplaces. (And if you are a nonunion employer and your eyes glaze over when you see the word “union,” read on, as this does affect you.)

It has done so primarily through Section 7 of the National Labor Relations Act, which establishes employees’ rights to engage in “concerted activity” for the purpose of mutual aid or protection. This includes discussing wages or other terms and conditions of employment.

The Act prohibits employers from interfering with employees’ exercise of Section 7 rights. Thus, disciplining or firing employees for engaging in protected activity is unlawful even if your firm isn’t unionized.

One way to reach nonunion employers is by scrutinizing their social media policies as well as employers’ decisions based on employees’ online activities. Social media is the new virtual “water cooler” where employees go to gripe. In fact, the NLRB’s acting general counsel has made it a priority to pursue social media claims against employers. While several such cases have worked their way through the system for some time, it wasn’t until late 2012 that the NLRB issued its first decisions involving social media. And most employers aren’t LOL.

GOING OVERBROAD?

In a case involving Costco Wholesale Corp., the NLRB considered Costco’s social media policy. The policy prohibited employees from electronically posting statements that “damage the company, defame any individual or damage any person’s reputation.” The NLRB held that this policy was unlawful because it was overbroad.

Certainly, if a policy explicitly restricts Section 7 rights, it is unlawful. In cases where the policy does not expressly restrict Section 7 rights (such as the rule at issue in Costco), the policy may nonetheless violate the Labor Relations Act if employees would reasonably construe the language to prohibit Section 7 activity.

While Costco’s rule may sound reasonable to many, the NLRB concluded that employees could construe it to prohibit them from making certain protected communications because the policy contained a broad prohibition that “clearly encompasses concerted communications” protesting Costco’s treatment of employees. The NLRB also relied on the absence of language in the policy that would exclude protected communications.

In a case involving the Lake Bluff, Ill.-based BMW dealer Karl Knauz Motors Inc., an employee complained on his Facebook page about the company’s decision to offer hot dogs, chips and bottled water at a sales event.

He posted pictures of the hot dog stand on his Facebook page with several sarcastic comments. A sample: “I was happy to see that Knauz went ‘All Out’ for the most important launch of a new BMW in years.” The worker also discussed those concerns with other co-workers.

In a separate incident, the employee posted pictures of an accident that occurred when a customer’s 13-year-old son drove a Land Rover, purchased from another Knauz-owned dealership, into a pond. The employee’s Facebook comment: “This is your car: This is your car on drugs.”

The employer terminated the employee for his Facebook postings and for violating the employer’s “courtesy policy.” That policy stated that employees were “expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees,” and that they should not “be disrespectful or use profanity or any other language which injures the image or reputation of the dealership.”

However, the NLRB found that the courtesy rule violated the labor act because it could be construed by employees as prohibiting protected activities. The NLRB declined to decide whether the employee’s complaints about the food were protected. However, the NLRB upheld the termination as lawful on the grounds that the employee’s Facebook postings relating to the Land Rover accident were not related to terms or conditions of employment.

#WHATSANEMPLOYER2DO?

These decisions highlight the problem with maintaining policies that generally prohibit employees from making critical comments about their employers, regardless of how they do so. Clearly, broad efforts to control the nature of employees’ work-related communications on social media will not be viewed favorably by the NLRB.

With that in mind (and even in light of the D.C. Circuit’s recent ruling in Canning v. NLRB holding that last year’s “Recess” appointments were invalid because the Senate was not in recess when the appointments were made), employers — union and nonunion alike — must delicately balance appropriate limitations on the use of social media with employees’ rights.

Is it overbroad or vague in a way that could be construed to “chill” protected activity?

Examples include policies that prohibit “damaging” statements about the employer or restricting employees from posting items that “could be viewed as inappropriate.” In addition, the policy should clearly state that it is not intended to discourage employees from engaging in protected activity.

Also, be sure that other company policies, such as harassment and proprietary information policies, apply equally to employee use of social media. Finally, call (or text) your favorite employment lawyer for help in drafting or updating policies to ensure compliance with recent NLRB guidance. : )

Todd Hanchett is a partner and a member of Stoel Rives LLP’s labor and employment group.